Ford government lawyers said the 10 supervised consumption sites that will be forced to close for being too close to child-care centres or schools can simply move — something the government itself said will not be allowed.
On the second day of a legal challenge against the Ford government’s decision to close several supervised consumption sites, Ontario’s lawyer Zachary Green said the law does not ban the sites outright and that they’re free to move outside the 200-metre “buffer zones” around schools and child-care centres.
The Ford government, however, maintained on Tuesday that it won't allow any new sites to open, or for existing ones to move.
“Our government has been clear, we will not approve any new or relocating drug injection sites," Health Minister Sylvia Jones' press secretary, Hannah Jensen, said in a statement.
Supervised consumption site licenses are tied to specific locations. A move would require a new application, which would require the health minister's approval.
"I don't know why the government's making the argument (in court) that we can move when we've been told repeatedly that there is no opportunity to move," said Bill Sinclair, CEO of The Neighbourhood Group, which runs a supervised consumption site in Toronto’s Kensington Market, and brought the Charter challenge.
The province is engaging in "sleight of hand" by saying different things in press conferences and in the courtroom, said Angela Robertson, the executive director of the Parkdale Queen West Community Health Centre, which is also slated to close.
Ontario's legal arguments were “confusing and confounding,” Robertson said.
Even if they could move, The Neighbourhood Group’s site has “everything somebody might need when they're in crisis,” Sinclair said.
“I can’t just find another building to move health care, counselling, employment services, housing down the street to some mythical location that doesn’t exist,” he said.
Ontario suggested in its factum that Sinclair's site could follow the lead of Sudbury's supervised consumption site, which "is located in a trailer in an open field."
Judge John Callaghan noted that there appears to be nowhere for clients of to-be-shuttered sites to go — a “pickup,” as he put it.
“The law does not prohibit a pickup,” Green said.
“The practical circumstance,” however, is that “there is a void of evidence that anybody is picking up” those clients, Callaghan said.
Supervised consumption ‘essential health-care service’: Toronto
Under the Community Care and Recovery Act, 10 sites within 200 metres of schools and child care must close no later than March 31, as the province transitions to an abstinence-based “HART hub” model.
If those 10 sites close, the remaining sites will be “overwhelmed,” a lawyer for the Harm Reduction Service Providers Coalition argued. The group is made up of eight organizations, including the Registered Nurses' Association of Ontario.
Toronto’s Street Health supervised consumption site, which is not slated to close, can handle a 10 to 20 per cent increase — but the expected demand will likely “far outstrip” that, lawyer Andrew Max said.
“There will be queues of people lined up outside. There will be more overdoses outside … and an increased number of people in the community that will die,” he said.
Street Health is proactively hiring grief counsellors to help its staff deal with the number of deaths, he said.
Public health experts and harm reduction advocates argued that the sites are critical to addressing the death and misery of the toxic drug crisis and that shuttering them would violate the Charter right to life and security of the person.
They are asking for an injunction to stop the closures, which are slated for March 31, until the Charter challenge is decided.
“Harm reduction is an essential health-care service,” said Fred Fischer, a City of Toronto lawyer representing the Board of Health, at the Ontario Superior Court on Tuesday.
There were 528 opioid toxicity deaths in 2023, according to Ontario’s chief coroner, Fischer noted. For context, there were 411 highway deaths that year, which the OPP said was the worst figure in 15 years, Fischer added.
Supervised consumption sites in Toronto responded to 2,300 overdoses — just 600 fewer than the number of opioid-related poisonings in the city’s emergency rooms, Fischer said.
The sites also function as city-run drug testing collection points. He said 96 per cent of fentanyl samples do not meet users’ expectations. The information from those tests are used by public health stakeholders to push key messages to the public and to create the very measures needed to combat the toxic drug crisis, he said.
There is an “urgent need for broad access to harm reduction” — a “vital pillar” of the public health response to the drug toxicity crisis, he said. Any reduction in these services will result in deaths, he said.
Court shouldn’t rule on public health: province
The provincial government didn’t attempt to refute that argument. Instead, Green argued the court’s job isn’t to settle debates between epidemiologists but to rule on that “reasoned apprehension of harm.”
Charter rights are subject to “reasonable limits.” One way to test if a limit is reasonable is whether there is a “reasoned apprehension of harm” — essentially, whether the government could logically believe it’s solving a problem, despite what experts might say.
There is evidence of drug dealing and antisocial behaviour near supervised consumption sites, including a video submitted as evidence of a man brandishing a knife while children in backpacks walk by, Green said.
Therefore, the government could have reasonably believed it was undoing harm by banning the sites within 200 metres of schools and child-care centres, he said.
“And that’s all that’s required,” he said.
Lawyers representing Leslieville Neighbours for Community Safety urged the court to consider locals’ concerns with the sites. They raised the death of Karolina Huebner-Makurat, who was killed by a stray bullet outside the South Riverdale Community Health Centre in Toronto.
“The omnipresence of drug dealers outside the (supervised consumption site) was barely acknowledged by the applicants yesterday,” lawyer Andrea Sanche said, adding that children could have been walking by the day Huebner-Makurat was shot.
Sanche said she understands it’s hard for the sites to find willing landlords, but that the neighbours shouldn’t have to bear the consequences for the inappropriate location of the site.
Justice Callaghan noted the federal minister of health found the South Riverdale site to be suitable.
“Maybe they got it wrong,” Sanche said.
Lawyer Harleen Pentlia described a National Post story in which a former worker at the South Riverdale site claimed staff members would get high on shift and one would pay a client to steal alcohol.
Children are exposed to needles and antisocial behaviour from aggressive supervised consumption clients, including masturbation, defecation and committing petty crimes, Pentlia said.
“If you see people doing something, you’re much more likely to do it,” she said.
